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Dr. Ikramul Haq & Abdul Rauf Shakoori
The decline in the quality of democracy has most often been driven by political elites focusing on securing their own political and economic power at the expense of societal development—Global Findings byBertelsmannStiftung
The flagship publication by World Bank (WB), Worldwide Governance Indicators (WGI) ranks key dimensions of governance across 200 countries since 1996. The key indicators include: “Voice and Accountability, Political Stability and Absence of Violence/Terrorism, Government Effectiveness, Regulatory Quality, Rule of Law, and Control of Corruption”. Over 200 countries are assessed on a scale that ranges from approximately -2.5 (weak) to 2.5 (strong). In Pakistan, the goals of freedom of expression, freedom of association, and the presence of media free from any outside influence are yet to be achieved. Pakistan’s score on “Voice & Accountability” during the dictatorship of General Pervez Musharaf was -0.95 in 2007 which improved to -0.69 in 2017. However during the rule (2018-2022) of Pakistan Tehreek-e-Insaf (PTI), the ranking declined to 17 points—rating was -0.84 in 2021.
Undue interferences in the affairs of executive by the judiciary and military have damaged the already fragile democratic fabric. It has promoted political instability and/or politically-motivated violence and the scourge of terrorism. Accordingly, the score against “Political Stability and Absence of Violence/Terrorism” worsened to -2.64 in 2009, mainly because of increased terrorism—a result of faulty policies of General Pervez Musharraf. However, due to a major operation against terrorists in 2014 under Pakistan Muslim League (Nawaz) by the army, with strong public and political support, Pakistan witnessed significant improvement in 2018, securing ranking of -2.27. Continuous monitoring and operations against terrorist groups by Pakistan’s security agencies and United States’ exit from Afghanistan played a significant role in improving our ranking for this indicator—in 2021 it improved to -1.67.
Factors like quality of public services, civil services and degree of its independence from political pressures as well as the quality of policy formulations and their implementation play a key role in developing citizens’ confidence in governments and institutions. Successive governments in Pakistan—civil and military alike—have failed on these accounts. India and Pakistan inherited similar governance structures on independence. India has progressed significantly as its score for “Government effectiveness” improved from -0.11 in 1996 to 0.28 in 2021, whereas Pakistan’s score was .0.68 in 1996 and -0.4 in 2021.
One critical dimension is “rule of law”, which indicates the extent to which citizens have confidence in institutions and governments, and to the extent they comply with rules and regulations. In this regard, the role/performance of police and the courts is very important. “Rule of law” still seems to be an alien concept in Pakistan where law enforcement agencies have little or no respect/regard for the law, while courts have failed to enforce the same. Unfortunately, there is a clear dichotomy/discrimination in the treatment of various classes of society by both the police and courts. In 1996, Pakistan’s score was -0.64 and after almost 25 years it stands at 0.63 in 2021.
The Human Rights Watch in its report [This Crooked System: Police Abuse and Reforms in Pakistan] rightly observed that the police is one of the most widely feared, complained against, and least trusted government institutions in Pakistan, lacking any effective system of accountability and plagued with corruption at its utmost.
The report further states that district-level police always work under the influence of politicians, landowners, and other powerful members of society. Policemen are involved in extrajudicial killings, torture of detainees to obtain confessions, harassment, and extortion of individuals seeking to file criminal cases, especially against members of security forces.
Similarly, the Bertelsmann Transformation Index (BTI), a collaboration of nearly 300 countries and regional experts from leading universities and think tanks worldwide, has ranked Pakistan poorly in BTI Transformation Index. The BTI Board runs a project that analyses and compares transformation processes towards democracy and inclusive market economy worldwide.
BTI, aimed at identifying successful strategies for steering positive changes in overall governance and democratic dispensation, has found Pakistan’s performance in this area extremely unsatisfactory. The Pakistan Country Report (2022) [“the Report”] on various indicators like governance, economic and political transformation, ranks us in lower performing countries. Our ranking on Governance Index is rated at 111/137, on Political Transformation Index 101/137, and on Economic Transformation Index, at 106/137.
It is pertinent to mention that while discussing the situation relating to ‘Rule of Law in Pakistan’, the Report specifically points out: “In recent years, the courts have played a more activist role in Pakistan’s politics, using the power of judicial review to overturn legislation passed by parliament, including the 21st Amendment to the Constitution (2015). Since then, the courts have also been accused of working with the military establishment to prosecute opposition politicians belonging to the PML-N, but have also, on occasion, asserted their independence by ruling against the military’s interests, as was the case in the conviction of General Musharraf for high treason in December 2019”.
The Report further says: “At lower levels, the judiciary remains characterized by a lack of resources, leading to a massive backlog of an estimated two million cases and relatively high levels of corruption. Bar associations and other legal bodies have emerged over the last decade as powerful interest groups in society, and often come into conflict with the police and other groups. In December 2019, over 200 lawyers attacked the Punjab Institute of Cardiology in Lahore in response to the alleged mistreatment of their peers by doctors at that hospital. The attack led to the deaths of several patients and considerable property damage”.
The Report specifically observes that our judiciary has been playing an ambivalent role, and always validated extraconstitutional steps by the dictators. The Report does not mention the only exception of ‘Judicial Martial Law of Gen. Pervez Musharraf’.
The Report also highlights the legislative performance in Pakistan and notes that after coming into power in 2018, the PTI government preferred to rule through executive fiat, using Presidential Ordinances under Article 89 of the Constitution in place of regular legislation. Apart from passing Ordinances, the government lacked control over military establishment and was dependent on them to exercise its powers.
The Worldwide Governance Indicators (WGI) also emphasise that the control of corruption is a very important task for all governments. WB renders help to governments to effectively utilise their resources for this purpose. The report further highlights that in Pakistan, public power is exercised for private gains and both petty and grand forms of corruption are used for “elite capture”. The 2021 statistics show that Pakistan’s score is -0.79 on the World Bank’s WGI that is related to controlling corruption. Those who matter in Pakistan must realise that despite having a strategic location with world’s fifth largest population and a regulatory framework (laws and regulations), we have failed to put a comprehensive mechanism in place to run the country’s affairs smoothly and transparently.
Selective application of law by the superior judiciary wedges each organ of the state. The BTI Transformation Index Report, specifically highlights: “While the threat of forcible expropriation remains real at the local level, particularly for individuals lacking paperwork or connections to the bureaucracy, large-scale real estate and commercial developments are also often based on fraudulent and illegal practices. In 2019, real estate developer Malik Riaz was fined a record PKR 460 billion by the Supreme Court for illegally obtaining large swathes of land in Karachi’s Malir district upon which he built his Bahria Town project. The project had involved the forcible dispossession of local villagers. The often illegal and coercive practices that characterize the seizure of land in Pakistan can be juxtaposed with the demolition, in recent years, of informal settlements in Islamabad and Karachi, with “anti-encroachment” drives launched by the government leading to protests by the urban poor displaced by these measures. Disputes over land ownership are one of the largest sources of litigation in Pakistan’s lower courts, with hundreds of thousands of cases contributing to a judicial backlog compounded by inefficiency and corruption. In 2020, Pakistan was ranked 120 out of 128 counties in the International Property Rights Index”.
Decision of the Supreme Court in above-mentioned case provided a justification to all those global watchdogs and other international organisations that call our judicial system shady, showing dissatisfaction about dispensation of justice in Pakistan. Many believe that our courts work under the influence of powerful people. Not only the Supreme Court of Pakistan, but PTI government also returned him the full amount recovered by the United Kingdom’s National Crime Agency due to his involvement in money laundering activities—see detail in Unconstitutional asset-whitening schemes & amnesties.
Since we hardly feel any embarrassment for being known for using selective applicability, our law enforcement agencies (LEAs) including National Accountability Bureau (NAB), Federal Investigation Authority (FIA), and others are silent about it and no action has been taken so far against this criminal act. Even the Supreme Court, whose judges have a tendency to take notice on their own (suo muto) of certain issues related to any steps taken by the government. Recently, a Supreme Court Bench stopped the present government from exercising its executive powers of transfer/posting officers when the matter was highlighted by an honourable judge in a letter. However, on issues pertaining to rule of law, the Supreme Court has shown little or inadequate concern—this inaction, even if inadvertent, needs to be taken notice of. If we look at the practice of our LEAs and courts, both showed different approaches. In the recent past, LEAs were used by the sitting government to register fake cases against its opponents without any solid proof—courts also allegedly passed orders beyond their jurisdictions that were widely criticized by the legal fraternity.
Recently, it has been observed that judges are found to stop parliamentary investigation proceedings and even stopped the LEAs from corruption inquiries against particular politicians. All this is happening as our privileged classes do not consider themselves answerable to anyone. The concept of self-accountability of judges through the Supreme Judicial Council is not working well anymore. The only way forward for Pakistan to achieve financial as well as political stability is to ensure strict accountability that is applicable to all, civilian and military personnel as well as the judiciary.
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Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He isVisiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, investment companies, money service businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).